Relates to the offenses of rape in the first, second and third degrees; repealer

Summary of specific provisions

This act amends penal law section 130.25 to Rape in the Fourth Degree. Rape in the fourth degree is a class F. felony. This section expands the definition of rape to include: sexual intercourse, oral sexual conduct or anal sexual conduct, and adds a subdivision (4) and (5).

This act amends penal law section 130.30 to Rape in the Third Degree. Rape in the third degree is a class D felony. This act also adds subdivisions (3) and (4).

The Penal law is amended by adding a new section 130.33, Rape in the Second Degree. Under this Act, a person is guilty of rape in the second degree when he or she inserts a finger in the vagina, urethra, penis, rectum, or anus of another person causing physical injury to such person: (1) by forcible compulsion; or (2) when the other person is incapable of consent by reason of being physically helpless; or (3) when the other person is less than eleven years old. Rape in the second degree is a class C felony.

This act also amends penal law section 130.35 by expanding the definition of first degree rape as sexual intercourse, oral sexual conduct, or anal sexual conduct. Subdivision (2) of 130.35 is added to read that: A person is guilty of rape in the first degree when: (2) he or she inserts a foreign object in the vagina, urethra, penis, rectum or anus of another person causing physical injury to such person: (a) by forcible compulsion; or (b) when the other person is incapable of consent by reason of being physically helpless; or (c) when the other person is less than eleven years old.

Effects of present law which this bill would alter

Redefine Rape in the First, Second and Third Degrees as sexual intercourse, oral sexual conduct, or anal sexual conduct.

Justification

On March 28, 2012, a Justice of the New York State Supreme Court declared a mistrial on the rape charge against former New York City Police Officer Michael Pena. Pena was convicted of several other charges for holding the schoolteacher at gunpoint, threatening her life and forcibly sodomizing her. Pena was not convicted of rape despite overwhelming evidence of forcible, non-consensual sexual

conduct with a Bronx schoolteacher. It is galling that in the face of evidence of the defendant's semen in the victim's underwear, redness to her genitals, eyewitness testimony and the victim's own account of the pain of the attack, Pena was not convicted of the top count of rape.

Common sense dictates that what happened to the victim in this case is rape.

This bill will redefine rape as criminal sexual conduct, rather than sexual intercourse, to avoid a future miscarriage of justice. Sections 130.25, 130.30 and 130.35 of the Penal Law will be amended to substitute criminal sexual conduct, which is defined as sexual intercourse, oral sexual conduct, anal sexual conduct, or aggravated sexual contact for the current element of sexual intercourse, which requires penetration.

Prior legislative history

2011,2012: S.6877 Referred to Codes

Fiscal implications for state and local governments

None.

Effective date

This act shall take effect on the ninetieth day after it shall have become a law and shall apply to any offense committed on or after such effective date. As it pertains to the repealed sections of law, nothing in this act shall affect a requirement to register pursuant to article 6-c of the correction law; a lawfully required disclosure of a conviction; any restriction or prohibition for certain types of employment, housing, or government benefit; or any other ongoing matter related to a conviction of the sections repealed in this act.